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Old Sunday, November 22, 2015
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Default Local Government

Local Government Acts 2013 and Province-Local Government Relations- Analysis of the UNDP
Nov 20, 2015

(Muhammad S. Shafique

CEO, Training Pakistan Private Limited & Director, GGW LLC, Dubai & Indus-Land Ent. Sharjah (2010-todate))

Within a few more weeks, local government elections in all four provinces of Pakistan will be completed. There will be soon local governments in place at the grassroots level. However, there is heated debate going on if the local governments are properly equipped by devolving responsibility and authority to improve governance in the country.
Being an ordinary Pakistani from a remote village, I am afraid to write something that could be treated as biased opinion. To avoid such perception, I am reproducing a comparative analysis of the UNDP as such to let people judge the merits and demerits of the local government system that is being termed as system to supervise sweepers only. Whatever the case may, the following analysis is an opinion from a neutral and an international entity.

"The local government (LG) Acts enacted by the provincial assemblies of Balochistan, Khyber Pakhtunkhwa, Punjab and Sindh differ from Pakistan's previous experience with local governance in several ways. The Acts were imposed neither by a military regime, nor by the federal government, and these have been drafted and adopted by the provincial assemblies after much debate and with a sense of ownership. The positive aspects notwithstanding, the LG Acts of 2013 are fragmented, and appear to be driven by considerations of maintaining the status quo, rather than establishing effective local governance arrangements through the devolution of adequate political, fiscal and administrative power to local councils.

Historical Overview

The Constitution of Pakistan establishes the state as a federal parliamentary republic, comprising four provinces: Punjab (95 million), Sindh (41.3 million), Balochistan (8.8 million) and Khyber Pakhtunkhwa (23.3 million). Administratively, the country is divided into Districts, Tehsils (sub-districts) and Union Councils, with each Union Council comprising a number of villages.

However, a universally acceptable form of the federation that guarantees a balanced distribution of power among the federating units, including the local governments, remains an elusive goal. Two factors have contributed to this. First, it was not until 1958 (11 years after Pakistan's independence) that political leaders and parties agreed on a constitution, which was subsequently amended twice.

Second, the military took the country's reins at several critical junctures and experimented with various forms of local government, primarily surrogates for a parliamentary form of democracy.

Context and Key Questions

The revival of local governments continues to be debated, despite the fact that the 18th Amendment to the Constitution of Pakistan has made it mandatory. Article 140(A) of the Constitution explicitly states, "Each Province shall, by law, establish a local government system and devolve political, administrative, and financial responsibility and authority to the elected representatives of the local governments." Moreover, sub-clause 2 of the same article stipulates that "Election to the local governments shall be held by the Election Commission of Pakistan."

Since the country's political transition in 2008 and, particularly, after the passage of the 18th Constitutional Amendment, the following trends are visible. First, the provincial leaderships reluctantly passed the LG laws and taken steps to hold local elections. Second, the provinces have shown a preference for, and a considerable degree of unanimity in, restoring the Commissioner system, whereby the provincial governments manage local government functions directly through the provincial bureaucracy, rather than continuing with the devolution reforms elected by the previous LG Act of 2001. Third, demographic changes, and an unprecedented rate of urbanization, have made local governments a necessity and not simply a choice. Fourth, there is growing awareness among civil society, media and policy analysts that local governments are a must for efficient and accountable governance. Finally, a series of landmark decisions and persistent interventions by the higher judiciary have made it impossible for the provincial governments to hold up the local government elections.

These trends raise several questions. Why have the provincial governments been reluctant to revive the local governments? What has caused the return to the Commissionerate system? Why do three provinces still lack a political consensus on the main characteristics of the LG laws? What can be done to ensure that the revival of the LG Acts improves governance, service delivery and citizens' participation at the local level? In the following pages, I will address some of these questions.

Basic Democracies Order 1959

In 1958, the military assumed power and chose to install local governments through the Basic Democracies Order (1959). The military rulers found politics divisive and cumbersome and responded to demands for 'provincial autonomy' through centralization, while seeking legitimacy through local governments. The Basic Demands system was created as a substitute for universal suffrage and served as an electoral college to elect the president and the legislative assemblies.

In urban areas (towns with a population of less than 14,000), it created Municipal Committees (MCs) and Union Committees (UCs), designed to perform 37 functions ranging from social welfare to health and infrastructure. The MCs had limited taxation powers and could levy taxes on vehicles and trade, whereas the UC had no fiscal powers. Each UC had 6-10 elected members and its chairman were elected as an ex-officio member of the MC. The chairman of the MC was appointed by the provincial government or by the Commissioner.

In rural areas, the first tier of government was the Union Council (UC) that consisted of a group of villages and performed 37 functions. Each UC elected a chairman from amongst its members who also served as a member of the Tehsil (sub- district ) Council (TC). The TC had no executive functions or taxation powers, and its purpose was to coordinate the activities of UCs under its jurisdiction. The next level was the District Council (DC), the electoral college of which included the chairmen of all UCs, TCs and MCs, removing the distinction between urban and rural areas. The DC had 28 obligatory and 70 optional functions, as well as the power to levy taxes. Its basic purpose was to coordinate the activities of all the councils and committees under its jurisdiction.

Local Government Orders 1969 and 1979

Subsequent military regimes (1969-71 and 1977-88), adopted the same model of promoting local government while maintaining centralized control at the federal level. Thus, rather than a federal principle, the local government came to be identified with the military regimes as an instrument of delegitimising the party system and provincial autonomy, while trivializing political processes and power sharing at multiple levels (federal, provincial and local).

The Local Government Order 1979 expanded the local governments and empowered the Deputy Commissioners. This ordinance created four levels of municipal government in the urban areas: Town Committees, Municipal Committees, Municipal Corporations and Metropolitan Corporations. Members of each council elect the senior officers of these councils and the controlling authority is the elected house. In the rural areas the system provided for a three-tier system of local government, where Union Councils, Tehsil or Taluka Councils and District Councils came into existence. The chairmen of these councils were elected by the members.

Local Government Ordinance 2001

The Local Government Ordinance (LGO) 2001 removed the urban-rural divide and established local government at three levels: Union Council, Tehsil/Taluka Council and District Council levels. The Union was the basic unit and the Union Nazims (mayor)and Naib (deputy) Nazims, directly elected by the voters, became members of the District and Tehsil Councils, respectively. The LGO did not establish any hierarchical relationship between the local and provincial governments, but networked the former with the National Reconstruction Bureau and the President's office.

It devolved administrative, financial and development powers to the elected officials in the local councils and all the government departments became accountable to the District Council. The Deputy Commissioners were re-designated as District Coordination Officers and subordinated to the District Nazim for executive approvals, performance evaluations and transfers/postings. The role of police oversight by the Deputy Commissioners was abolished and the district police chiefs became directly accountable to the District Nazims.

The LGO changed the political and social landscape by bringing more than 150,000 people in the political arena and creating more than 6,000 councils. According to one report, 38 percent of the newly elected councillors reported that they had never contested an election, nor had anyone from their family. Another important feature of the LGO 2001 was its allocation of reserved seats for women (33 percent), minorities, professionals and peasants, although women's participation was constrained in some parts of the country by the local jirgas, tribal leaders, and biradaries.

Finally, the LGO provided for several forums, such as District Monitoring Committees, to oversee the work of government departments, Citizens Community Boards to allow direct citizen participation in designing and overseeing development schemes, Musalehat-e-Anjumans (consultative bodies) for alternate dispute resolution, and Citizen Police Liaison Committees for promoting the rule of law and protection of rights.

Military and Civil Service Involvement in Local Governments

The military regimes in Pakistan have generally favored reliance on local government for at least three reasons: first, political exclusion of the incumbents by changing the rules of the game; second, alliance with the bureaucracy to manage the centralized and hierarchical structures; and, third, creating a political elite by introducing new politicians through the local government laws.

The impact of the three local government laws and elections has been different and nuanced. The BD 1959 revived and consolidated the prestigious Civil Service of Pakistan (CSP), whereby the District and the Deputy Commissioners became the lynchpins of the regime and pursued the politics of patronage and the development goals of the regime.

Under the military regime of Field Marshal Ayub Khan (1958-69), the military governed and the CSP ruled. That also led to the creation of a new set of political elites, who became members of the 80,000-strong BD system (later raised to an electoral college of 120,000). However, with the downfall of the military regime, the CSP also came under criticism. The 1969 mass movement and protests also tarnished the glory and image of the bureaucracy in general, but particularly the CSP.

The Civil Services Reforms of 1973 under Prime Minister Zulfikar Ali Bhutto (1971-77) further eroded the power and prestige of the CSP, who were now labelled as the District Management Group (DMG).

General Zia-UL-Haq, who assumed power by dismissing the government of Zulfikar Ali Bhutto in July 1977, sought legitimacy again through the Local Government Ordinance 1979. The regime revitalized the districts, while delegitimising politics at the national and provincial levels, and resuscitated local government (elections were held in 1979, 1983 and 1987). During this period, the CSP and the DMG were able to rehabilitate their positions both in the policy arena and in the districts.

When General Musharraf seized power in October 1999, the military regime sought the international community's support by promising a return to democracy, improved governance, and reforms in the social and economic sectors. The local government plan emphasized the 1973 Constitution by invoking the separation of the executive and judiciary. It sought to reduce the role of the CSP, particularly the DMG, by restructuring the civil service at the district level and subordinating it to the elected representatives.

The offices of Division Commissioner and District Commissioner (DC) were abolished and their roles and functions were distributed to the District Government headed by the elected mayor (Nazim) and including a District Coordination Officer (DCO) who reported to the Nazim. The magisterial powers of the DC were withdrawn and given to the judiciary and police. The role of police oversight formerly held by the DC was abolished and the responsibility of law and order was entrusted to the Nazims.

Analysis Of Local Governments Acts Of 2013

In accordance with the 18th Amendment to the Constitution, the provincial assembly of Balochistan passed the LG Act in 2010, whereas the provincial assemblies of Punjab, Sindh and Khyber Pakhtunkhwa passed their LG Acts in 2013. Despite a lack of enthusiasm, and due consultation during the formulation stage, the passage of the LG Acts is a significant milestone.

However, the credibility of these laws is affected by the fact that certain parts of the LG Acts of Punjab, Sindh and Khyber Pakhtunkhwa have been challenged by the opposition parties in various courts. One striking feature of all four LG Acts, in comparison with the LGO 2001, is that none of the Acts devolves sufficient functions and powers to the local governments, and all four provincial governments have retained the authority to suspend or remove the heads of an elected local government. The functioning of the Local Government Fund is managed by the Finance Department and Finance Minister of the province.

Structure and Constituency Delimitation

All four LG Acts provide for local government elections on a party basis. Punjab, Sindh and Balochistan will have Union Councils and District Councils in the rural areas and Union Councils/Committees and Municipal Committees in the urban areas. The Khyber Pakhtunkhwa LG Act also provides for Tehsil Councils and Village Councils in the rural areas and Neighborhood Councils in the urban areas.

Constituency delimitation and maintaining territorial unity are critical issues in electoral politics, and this process can be used for gerrymandering. The LG Acts of Punjab, Sindh and Khyber Pakhtunkhwa allow for discretion of the provincial government to change, exclude, include and redesign a constituency.

The Punjab and Sindh LG Acts emphasizes the preservation of a Union Council's territorial integrity as far as possible, that the population of a UC in a District should be uniform, and that a UC should not cross the boundaries of a Revenue Taluka.

The Balochistan LG Act authorizes the provincial government to define and delimit the number of wards. The Khyber Pakhtunkhwa LG Act also provides for a Delimitation Authority, which bodes well for the local governments provided the composition and membership is balanced and allows broader representation and participation.

However, the delimitation of constituencies carried out under the auspices of the Sindh and Punjab governments has been recently declared illegal following judgments handed down by the Sindh and Lahore High Courts, respectively.

Term Limits And the Electoral Process

The LG Acts of 2013 are not consistent with the term limits of the local governments. Punjab provides for a term of five years, Sindh and Balochistan of four years, and Khyber Pakhtunkhwa of three years.

The electoral process also varies across provinces. Punjab provides for direct elections for the posts of Chairmen and Vice-Chairmen of the Union Councils, whereas Sindh envisages indirect election of Chairman and Vice-Chairman of Union Council from a panel of nine Councillors elected to the general and reserved seats.

In both Punjab and Sindh, the heads of District Councils will be chosen indirectly through an electoral college comprising all members of the respective council.

Khyber Pakhtunkhwa provides for direct elections of members for all seats (reserved and non-reserved) in the Village and Neighborhood Councils. In Khyber Pakhtunkhwa, the reserved seats for women, peasants, youth and minorities will be filled through proportional representation of the political parties on the basis of the number of seats won.

Fiscal Devolution

All four LG Acts provide for the establishment of Provincial Finance Commissions (PFC), headed by the provincial Finance Ministers. The local councils would receive allocations through the respective Provincial Finance Commission Awards, and would have limited powers to impose taxes or exercise regulatory functions. The Khyber Pakhtunkhwa Act provides greater fiscal autonomy to the local government, as it empowers Village and Neighborhood Councils to supervise all local government functionaries including revenue officials in their jurisdiction. All four LG Acts require audits of the local councils by the Office of the Auditor General.

Relations between Local and Provincial Governments

The LG Acts of all four provinces tend to subordinate the local governments to the provincial governments. They allow the Chief Ministers to dismiss a local government or the head of council and appoint office holders after the dismissal of council heads. In Punjab, the government can suspend local 8 government officials for 90 days, in Sindh for 6 months, and in Khyber Pakhtunkhwa and Balochistan for 30 days. During and after this period the dismissed officials can file review petitions to the provincial governments.

The Punjab and Balochistan LG Acts state that the District Councils will function under the directives of the provincial government, giving the provincial government leverage over the local governments. The Khyber Pakhtunkhwa and Sindh Acts give greater autonomy to the provincial governments to supervise and inspect local governments.

While all the LG Acts devolve the key service delivery functions of local governments, provinces have made exceptions to retain large entities such as the Karachi Water and Sewerage Board, Sindh Building Control Authority, Lahore Development Authority (LDA), and Solid Waste Management (SWM), etc.

The LG Act of Punjab provides for the creation of education and health authorities, comprising members from the provincial government, local governments, technocrats and the private sector. The Chief Minister will be the appointing authority and can dismiss the heads of the authority or dissolve the authorities.

Consultation, Arbitration And Conflict Resolution

Each of the four LG Acts provides for the establishment of Local Government Commissions (LGC), headed by the provincial Minister for Local Government and including members of the provincial assembly, bureaucrats and technocrats. In Balochistan the commission is named the Divisional Coordination Committee. The LGCs perform inspections, social audits and dispute resolution for councils and submit reports and recommendations to the provincial government.

All four provinces authorize the Union, Village and Neighborhood Councils constitute panels of Councillors to facilitate out of court dispute resolution. Punjab allows a nine member Panchayat (assembly chosen by the local community) in rural areas and Musalehat-e-Anjuman in urban areas, including two women members nominated by the provincial government. Balochistan allows for three-member Musalehate- Anjumans in both rural and urban areas. Khyber Pakhtunkhwa allows Union, Town, Tehsil and District councils establish complaint Cells to address citizens' grievances.

In Punjab, Sindh and Balochistan, the police are not under the local government, whereas in Khyber Pakhtunkhwa the Village and Neighborhood Councils have powers to supervise the police and make recommendations to the district government.

Concluding Thoughts

The LG Acts for each province, in their current form, provide limited autonomy to the local councils in terms of fiscal management and control over service delivery, revenue, tax and police departments. If the local elections are to have any real meaning, provincial governments will need to ensure that newly elected local councils have sufficient resources and authority to address service delivery and development challenges in local communities. This will require provincial governments to recalibrate their approach towards the third tier of government. At present their instincts seem to be too 'centralize' for the purposes of political expediency, rather than acting in the true spirit of the 18th amendment and empowering local government structures.

For a strong federation to work, the provincial assemblies must recognize that autonomous local governments are essential for improved governance and service delivery, but they also need to create laws that better clarify the division of power and functions between the provincial and local governments.

It is hoped that the LG Acts will evolve over time as the local governments come into being and the province-local government relations play out and attain a new balance of power. The federal government should explore supporting inter-provincial coordination and experience sharing to define guiding principles for local government reform. Such an initiative would lend greater legitimacy to local government and strengthen the federation.

With the advent of local governments, there also is a need to put civil service reform back on the agenda. The provinces could, for example, consider the establishment of the District Cadre Service and strengthen the Provincial Public Service Commissions.

Finally, the role of the Election Commission of Pakistan and the higher judiciary in upholding the spirit of the Constitution bodes well for the credibility and continuity of local governments. The complementary role played by civil society, academia, media and business groups will also raise the level of awareness about the necessity of local government for improving governance."
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